Workers’ Compensation

ORS 656.388
Approval of attorney fees required

  • lien for fees
  • fee schedule
  • adjustment
  • report of legal service costs

(1)

No claim or payment for legal services by an attorney representing the worker or for any other services rendered before an Administrative Law Judge or the Workers’ Compensation Board, as the case may be, in respect to any claim or award for compensation to or on account of any person, shall be valid unless approved by the Administrative Law Judge or board, or if proceedings on appeal from the order of the board with respect to such claim or award are had before any court, unless approved by such court. In cases in which a claimant finally prevails after remand from the Supreme Court, Court of Appeals or board, then the Administrative Law Judge, board or appellate court shall approve or allow a reasonable attorney fee for services before every prior forum as authorized under ORS 656.307 (Determination of issues regarding responsibility for compensation payment) (5), 656.308 (Responsibility for payment of claims) (2), 656.382 (Penalties and attorney fees payable by insurer or employer in processing claim) or 656.386 (Recovery of attorney fees, expenses and costs in appeal on denied claim). No attorney fees shall be approved or allowed for representation of the claimant before the managed care organization.

(2)

Any claim for payment to a claimant’s attorney by the claimant so approved shall, in the manner and to the extent fixed by the Administrative Law Judge, board or such court, be a lien upon compensation.

(3)

If an injured worker signs an attorney fee agreement with an attorney for representation on a claim made pursuant to this chapter and additional compensation is awarded to the worker or a settlement agreement is consummated on the claim after the fee agreement is signed and it is shown that the attorney with whom the fee agreement was signed was instrumental in obtaining the additional compensation or settling the claim, the Administrative Law Judge or the board shall grant the attorney a lien for attorney fees out of the additional compensation awarded or proceeds of the settlement in accordance with rules adopted by the board governing the payment of attorney fees.

(4)

The board shall, after consultation with the Board of Governors of the Oregon State Bar, establish a schedule of fees for attorneys representing a worker and representing an insurer or self-insured employer, under this chapter. The Workers’ Compensation Board shall review all attorney fee schedules biennially for adjustment.

(5)

The board shall, in establishing the schedule of attorney fees awarded under this chapter, consider the contingent nature of the practice of workers’ compensation law and the necessity of allowing the broadest access to attorneys by injured workers and shall give consideration to fees earned by attorneys for insurers and self-insured employers.

(6)

The board shall approve no claim for legal services by an attorney representing a claimant to be paid by the claimant if fees have been awarded to the claimant or the attorney of the claimant in connection with the same proceeding under ORS 656.268 (Claim closure).

(7)

Insurers and self-insured employers shall make an annual report to the Director of the Department of Consumer and Business Services reporting attorney salaries and other costs of legal services incurred pursuant to this chapter. The report shall be in such form and shall contain such information as the director prescribes. [Formerly 656.590; 1983 c.568 §3; 1987 c.884 §35; 1990 c.2 §30; 1995 c.332 §44; 2007 c.908 §3; 2015 c.521 §8]

Notes of Decisions

Where Court of Appeals decided all substantive issues and remand to referee was for ministerial purposes only, claimant did not “finally prevail after remand” and was barred from raising fee issue before referee. Aguiar v. J.R. Simplot Co., 94 Or App 658, 767 P2d 86 (1989)

Court of Appeals lacked authority to change attorney fees awarded by referee and board in earlier proceedings. Depoe Bay Fish Co. v. Coon, 113 Or App 249, 832 P2d 856 (1992)

Award of carrier-paid attorney fee is not permitted. Liberty Northwest Ins. Corp. v. Koitzsch, 135 Or App 524, 899 P2d 724 (1995)

Source

Last accessed
May 30, 2023

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